Industry Committee on Sept. 26th, 2018

Thank you.

Reports indicated that Bell met with CRTC officials and pressured universities and colleges to support the application with regard to FairPlay Canada. Is that something we should be concerned about?

4:55 p.m.

Senior Vice-President, Regulatory Affairs, BCE Inc.

I think dialogue with regulator staff before an application is filed is entirely appropriate. In fact, it should be encouraged because it creates open dialogue with a regulator—whether it's for telecom, milk or bread—so that both parties can be informed. There's nothing inappropriate about that.

4:55 p.m.

Laurentides—Labelle, Lib.

For universities and colleges—?

4:55 p.m.

Senior Vice-President, Regulatory Affairs, BCE Inc.

I think you said maybe that Bell pressured universities and colleges. I would disagree with you entirely. Again, when someone's filing an application with the CRTC seeking support for those who think it's a good idea, it's perfectly appropriate to reach out to potential supporters and say, "Hey, do you think this is a good idea, and if you do, would you support this at the CRTC?” All constituencies do that. Again, I think it's entirely appropriate and, in fact, should be encouraged.

4:55 p.m.

Laurentides—Labelle, Lib.

I have a bunch more on net neutrality but I think I'm out of time.

4:55 p.m.

Liberal

The Chair Liberal Dan Ruimy

You're out of time.

4:55 p.m.

Laurentides—Labelle, Lib.

Thank you.

4:55 p.m.

Liberal

The Chair Liberal Dan Ruimy

Thank you for playing.

We're going to move to Mr. Albas.

You have seven minutes.

4:55 p.m.

Central Okanagan—Similkameen—Nicola, CPC

I want to pick up on net neutrality for MP Graham.

I disagree with this, but I think it was very smart of many of you here today to lump your concerns in with the wider category of illegal activity. That may be categorically correct, but I think most people would hope, when an RCMP officer sees someone driving dangerously down the road, that he or she would immediately move to protect the public's interest. We would hope the officer would do this rather than stopping and saying that there is an illegally parked car to the side, and then going under a municipal bylaw while there is obviously a moving concern.

I think you're trying to protect the interests of your company, and that's totally noble. We need you to do that. However, again, you're protecting the rights of your companies versus the wider interests and rights of everyone when we talk about public safety and whatnot.

As far as net neutrality goes, I will tolerate child pornography, terrorism recruitment and those kinds of sites being taken down as a point, because it's practical and it must be done. On the flip side, I disagreed with the government of Quebec when it tried to shake down ISPs outside of its jurisdiction to basically force gaming sites to come under their umbrella, so they could collect more revenue. I think you can't equate the two.

You're asking for a quasi-judicial branch of the CRTC to basically streamline your applications because you believe it's illegal, yet when the RCMP or our security apparatus need to take something down, they have to go through a judicial process of approval, get warrants, etc., to have those things done. Why do you think your needs should be streamlined while those that are more subject to public concern, things like terrorism and child pornography, have to go through a series of checks and balances for which we know there is judicial review?

I'll start with Bell, because you guys had the last word on illegal.

5 p.m.

Senior Vice-President, Regulatory Affairs, BCE Inc.

The proposal we filed, first of all, does contain a series of checks and balances so that the party that is subject to the potential blocking order has an opportunity to make representations, the party seeking the block has an opportunity to make representations, and ultimately, an independent body makes a recommendation to the CRTC and the CRTC decides.

Second, as we've said a couple of times, for an ISP to engage in blocking, they need the authorization of the CRTC. It's a statutory requirement. That's why we're going there. We're going to end up there in any event. We could go to court and then to the CRTC and have two different processes, but that seems to us not entirely efficient, again, especially for smaller content owners and providers.

5 p.m.

Central Okanagan—Similkameen—Nicola, CPC

The Shaw application to the CRTC specifically referenced that there's a lack of clarity as to what the Federal Court can rule on in this. Would that be an area we could look at as a way to have more oversight and clarity for your businesses, rather than going to a model whereby it goes to the front of the line in these kinds of cases, beyond those other cases of criminal activity?

5 p.m.

Vice-President, Legislative and Policy Strategy, Shaw Communications Inc.

Cynthia Rathwell

Yes, we discussed the need for clarification, and I will let Jay speak to the particulars of how that might happen.

To answer Mr. Lametti's question earlier, Shaw wasn't a member and isn't a member of the FairPlay coalition, but we did file a supporting brief. The reason, consistent with what Mr. Malcolmson just said, is that we believe it's a quasi-judicial body with a due process that's adequate to the task of dealing with this kind of content.

Jay can speak more to the particulars of the sort of amendment that would be in order to clarify the Federal Court jurisdiction.

September 26th, 2018 / 5 p.m.

Jay Kerr-Wilson Legal Counsel, Fasken Martineau, Shaw Communications Inc.

There are two things that could be done to help speed up the process or make it more efficient using the Federal Court as a tool.

One is to clarify the court's powers to order the specific blocking of a URL or to de-index it from a search engine to avoid the jurisdictional fight of whether that's actually within the wide ambit of injunctive relief that the Federal Court can grant. So, make it explicit, specific and clear that it's within the Federal Court's powers, because the Federal Court is sometimes a little leery about granting injunctive relief, and you want to give it comfort that this is actually what Parliament intends.

The second thing, to the point that Bell raised, is that right now you have a regime in which even if the court orders all ISPs to block access to specific content, you then have to go to the CRTC to ask for permission to do what the court has told you to do, and there's no guarantee the CRTC is going to say yes. That could put carriers in a position where they're either in breach of the Telecommunications Act or in contempt of court. That can't be good public policy, no matter what you think of FairPlay or any other initiative. Surely the CRTC has to be told that it has to allow ISPs to satisfy an obligation pursuant to a court order. That just seems to be common sense.

5 p.m.

Central Okanagan—Similkameen—Nicola, CPC

I appreciate that intervention. It at least fills out some of my interest in that.

I'd like to go to Teksavvy. Mr Kaplan-Myrth, do you believe that site blocking suggestions are technically feasible? As you said earlier, if there is eventually a clampdown, users will change behaviours—for example, encryption, such that there will not even be an ability for you to identify the information that flows through. Do you think that's technically feasible if those kinds of techniques get used, where an ISP will have no way of knowing what content is being transferred through its lines?

5:05 p.m.

Vice-President, Regulatory and Carrier Affairs, TekSavvy Solutions Inc.

Andy Kaplan-Myrth

Look, I don't think it's necessarily technically feasible for every ISP right now to do the kind of blocking that is already proposed. There was no description in the FairPlay application of what site blocking is. We hear a fair amount about DNS blocking, so if that's what blocking is at this stage.... You know, DNS is fairly common for ISPs to provide, but it wouldn't necessarily be required. Presumably, an ISP might configure all of its users' systems to go to a DNS server and then not have to maintain a DNS server. There's no requirement to provide a DNS server, so presumably that ISP wouldn't be able to block it. If there were a requirement to block it, I guess that would require putting a DNS server in place, making their end-users use it—I'm not sure that's a possibility—and blocking it.

So, that's just sort of the simplest case.

5:05 p.m.

Liberal

The Chair Liberal Dan Ruimy

Thank you.

5:05 p.m.

Central Okanagan—Similkameen—Nicola, CPC

I thought it was part of Mr. Lametti's time that was used, because she said she'd like to answer Mr. Lametti, so I would like an extra minute, Mr. Chair.

5:05 p.m.

Liberal

The Chair Liberal Dan Ruimy

You will have time to come back. Be very quick now, please, but you will have one more chance.

5:05 p.m.

Central Okanagan—Similkameen—Nicola, CPC

Mr. Malcolmson, you also mentioned that, on the standardization of notice, you could say the content is a violation against a rights holder, but you would then direct someone to the appropriate content. To me, that sounds very self-interested, given the vertical integration of your company to be able to do that. Do you think that's really in the public interest, or should it just simply involve giving the person notice that the content is illegal?

5:05 p.m.

Senior Vice-President, Regulatory Affairs, BCE Inc.

I think it is in the public interest, whenever there's an opportunity, to let Canadians know there are legal sources of the same type of content that they're consuming illegally. Whether it's content from Bell, Rogers, BlueAnt or CBC, if I'm pirating Anne of Green Gables, it might be in the public interest for the consumer of Anne of Green Gables to know that it's also available on cbc.ca.

5:05 p.m.

Central Okanagan—Similkameen—Nicola, CPC

I think it's more probable that it would be Game of Thrones.

5:05 p.m.

Liberal

The Chair Liberal Dan Ruimy

Thank you.

Can we move on now?

5:05 p.m.

Central Okanagan—Similkameen—Nicola, CPC